Arguments
What’s next after Supreme Court curbs regulatory power: More focus on laws’ wording, less on their goals
Posted on 8 July 2024 by Guest Author
This article by Robin Kundis Craig, Professor of Law, University of Kansas is republished from The Conversation under a Creative Commons license. Read the original article.
Federal Chevron deference is dead. On June 28, 2024, in a 6-3 vote, the Supreme Court overturned the 40-year-old legal tenet that when a federal statute is silent or ambiguous about a particular regulatory issue, courts should defer to the implementing agency’s reasonable interpretation of the law.
The reversal came in a ruling on two fishery regulation cases, Loper Bright Enterprises v. Raimondo and Relentless, Inc. v. Department of Commerce.
This decision means that federal courts will have the final say on what an ambiguous federal statute means. What’s not clear is whether most courts will still listen to expert federal agencies in determining which interpretations make the most sense.
While courts and judges will vary, as a scholar in environmental law, I expect that the demise of Chevron deference will make it easier for federal judges to focus on the exact meaning of Congress’ individual words, rather than on Congress’ goals or the real-life workability of federal laws.
Who decides what the law means?
Chevron deference emerged from a 1984 case that addressed the Environmental Protection Agency’s interpretation of the term “stationary source” in the Clean Air Act. The EPA asserted that a “source” could be a facility that contained many individual sources of air pollutant emissions. This meant, for example, that a factory with several smokestacks could be treated as a single source for regulatory purposes, as if it were enclosed in an imaginary bubble.
In upholding the EPA’s decision, the Supreme Court created a two-step test for deciding whether to defer to a federal agency’s interpretation of a statute that it administers.
In Step 1, the court asks whether Congress directly addressed the issue in the statute. If so, then both the court and the agency have to do what Congress directs.
In Step 2, however, if Congress is silent or unclear, then the court should defer to the agency’s interpretation if it is reasonable because agency staff is presumed to be experts on the issue. Justice John Paul Stevens reportedly told his colleagues, “When I am so confused, I go with the agency.”
The central question in both the Loper Bright and Relentless cases was whether the U.S. secretary of commerce could require commercial fishers to pay for onboard observers they were required to bring on some fishing voyages to collect catch data. Lower courts in these cases deferred to the agency’s interpretation that, under the Magnuson-Stevens Fishery Conservation and Management Act, it could require fishers to pay.
However, in an opinion by Chief Justice John Roberts, the Supreme Court majority concluded that Chevron deference contradicts the Administrative Procedure Act. This broad law governs both the procedures that federal agencies must follow and, more importantly, the standards that federal courts must use to review agency actions.
As the majority pointed out, under the Administrative Procedure Act, “courts must ‘decide all relevant questions of law’” – explicitly including interpreting statutes.
Curbing the administrative state
Since 1984, Chevron deference has become pervasive in federal administrative law. By the Supreme Court’s count, 70 of its own decisions in that time have turned on Chevron deference.
More importantly, thousands of lower federal court decisions – more than 400 a year on average – have deployed Chevron deference on issues ranging from Social Security benefits to workplace safety standards, immigration eligibility and environmental protection requirements.
Chevron deference gave many federal agencies broad flexibility to use laws to address new and emerging problems that Congress did not anticipate. But some members of the current Supreme Court – as well as some federal appellate judges – criticized this doctrine, for two key reasons.
First, it authorized executive branch agencies to interpret federal law and forced courts to accept agencies’ reasonable interpretations. However, since the Supreme Court’s 1803 decision in Marbury v. Madison, it has been the duty of courts – not federal agencies – to say what the law is.
Second, Chevron deference arguably allowed federal agencies to grab more regulatory authority than Congress intended them to have, usurping the legislative branch’s responsibility to make law and delegate authority.
Regulatory agencies take general directions written in laws from Congress and develop specific policies to achieve the goals Congress defined. EPA
How much does Loper Bright undo?
The court majority emphasized that prior court decisions upholding agency interpretations based on Chevron deference cannot be challenged solely because of that fact. As Roberts wrote, these holdings “are still subject to statutory stare decisis.”
Stare decisis, or “the thing is decided,” is legalese for why courts will respect prior decisions. In other words, no challenger can go back to a court that relied on Chevron deference and ask the court to change its original decision that the agency’s interpretation was OK.
That’s good so far as it goes. However, many agency interpretations of statutes can be challenged multiple times.
For example, the Clean Water Act protects “waters of the United States.” In 2023, the Biden administration issued new regulations interpreting which bodies of water the law covers. Challengers who disagree with that interpretation can attack the regulations directly and argue that the agencies’ reading of the law is wrong, as the fishing companies did in the Loper Bright cases.
However, under many laws, businesses and individuals can also challenge an agency interpretation at the moment when the agency decides that a general regulation applies specifically to them. These are called “as applied” challenges. After Loper Bright, any time an agency that benefited from Chevron deference goes to apply its interpretation to a new regulated entity, that regulated entity can challenge the agency interpretation – and this time the agency won’t get Chevron deference.
Will federal courts still listen to regulators?
Eliminating Chevron deference will likely worsen an existing division among judges, and justices, about how to go about interpreting statutes. It centers on how much a statute’s purpose and context should matter – or, instead, how much the judge should focus on the “plain meaning” of the particular words that Congress chose to use.
Suppose, for example, that a federal court faced the issue of how to define a vegetable for purposes of determining whether import taxes apply to imported tomato sauce. A plain meaning approach would emphasize that Congress decided to tax vegetables and that tomatoes are fruits; hence, tomato sauce is not subject to the import tax.
An approach focused on Congress’ purpose, in contrast, would emphasize that Congress wanted to tax all imports of savory foods that the public generally considers to be vegetables. Using this approach, the Supreme Court in 1893, in fact, decided that tomatoes were vegetables subject to import taxes.
Federal agencies typically take Congress’ purpose and the context in which regulators act very much into account when they decide what laws mean. For example, when the Food and Drug Administration had to distinguish proteins, which qualify as biologics for regulatory purposes, from chains of amino acids, which qualify as drugs, it focused on Congress’ reasons for creating the two categories. Ultimately, the agency decided that a molecule made up of amino acids had to have a certain level of complexity to qualify as a protein, and hence a biologic.
In contrast, ever since the late Justice Antonin Scalia joined the Supreme Court in 1986, federal judges – and especially Supreme Court justices – have taken an increasingly “plain meaning,” or textualist approach, to statutory interpretation. The current Supreme Court, for example, would almost certainly never have allowed a tomato to be a vegetable.
Dissenting Justices Elena Kagan, Sonia Sotomayor and Ketanji Brown-Jackson, along with many other legal experts, foresee serious problems for future cases that turn on highly technical issues. What will happen when a statute’s nonexpert plain meaning makes no practical sense in a highly technical or scientifically nuanced regulatory regime, such as the FDA classifying biologics and drugs?
Supreme Court Justice Neil Gorsuch, shown during his confirmation hearing on March 22, 2017, argued in 2022 that Chevron deference ‘deserves a tombstone no one can miss.’ AP Photo/Susan Walsh
How long will the APA matter?
This ruling also may signal that the court plans to pay greater attention to the 1946 Administrative Procedure Act’s primacy in federal administrative law. This statute had been in place for almost 40 years when the Supreme Court decided Chevron in 1984, and the Chevron majority did not see it as a problem at the time.
Now, however, it has become a reason to overturn Chevron deference. Other court-created glosses on administrative law may also be dead doctrines walking.
Congress can and has created different standards of review in other statutes, including the Clean Air Act that led to the Chevron decision. What if a future Congress specifically directs that the implementing agency should take the lead in interpreting a particular statute?
I expect that the Supreme Court would reach for the Constitution and declare any such delegation unconstitutional. In other words, it is probably only a matter of time before Loper Bright’s overruling of Chevron deference becomes a matter of federal constitutional law.
In NZ, fishermen having to pay for observers has been a sore point with fishermen too, but franky they brought in on their own heads. Previous to this regime, the fishermen were allowed "self-regulation" and self-reporting on things like bycatch, sealions killed etc. When observers were trialled (at taxpayer expense), it was instantly obviously that the industry was cheating on a massive scale. A wild fishery is a common, and free-for-all exploitation is not a right. Overall, the fishing industry does want a sustainable fishery; the public do want critically-endangered species protected. The problem is that short-term profit is not served by either. If you want to make money on an enterprise, then it befalls on you to accept the costs that allow such an enterprise to happen in a way acceptable to society. The same applies to say diary farmers who do not have some imaginary right to destroy waterways for other users, nor to miners to offload costs of restoration and pollution onto taxpayers. if your business plan calls for below-minimum wages and/or ignoring worker safety, then you dont actually have a business plan.
Actually Bob, don't hold your breath, this is not an inquisition, I owe no answers or fealty to you, and I don't fall for false "all or nothing" choices here or in life in general, such as that we either have taxpayer funded monitors or there would be none at all, or that if left unregulated all corporations and "most other people", or at least those who do not think as you do, are selfish, ignorant and bent upon self destruction, we were not Haiti or Nigeria prior to the growth of the regulatory state.
We have taxpayer funded state police who monitor drivers for speeding, we don't require drivers to pay the salary of an officer sitting in the right seat, on the other hand we do have taxpayer funded "monitors" in orders of magnitude greater numbers per active airliner flight deck... both ultimately the result of the collective outome desired by the people, and with the third leg of the stool restored now a bit less subject to the will of the regulators or the government, and a bit more to the people, and that is good, in my opinion, because I believe the mojority of my fellow citizens ARE civilized and of good will.
All of this bruhaha gets far from the original point... that if Congress is incomplete or unclear about something guiding legislation, or if times change, for example a Clean Air Act of 1850 to control draft animal farts is applied to CO 60 years later, whether the regulators should have the power to decide on their own, it is not about more or less regulation, or tyranny vs anarchy, it's about who has the final say over the regulators if their mandate is unclear.
Monitoring compliance with road rules is a bit different from monitoring of profit-making business for compliance with industry regulation. Industry levies or fees are how that is normally done here. Traffic speed enforcement is widely believed to be "self-funding".
TWFA @ 52:
Of course, you are right that you have no obligation to answer questions posed to you. You also have no obligation to support any of the assertions you make. You have no obligation to provide a consistent position, nor any obligation to clarify unclear statements that you make. You have no obligation to connect your opinions to reality, or base them on any observable phenomena. You have no obligation to change your opinions when others point out the errors in your logic, or provide information that contradicts your opinions.
And nobody else has any obligation to think that you have any constructive contribution to the discussion. Nobody else has any obligation to think that you really understand any of this, or that you have really given this any sort of comprehensive thought. Nobody else has any obligation to respect anything you say.
...and you finish with "it's about who has the final say over the regulators if their mandate is unclear", in spite of the fact that after many comments, you still won't actually explain who has "the final say" (clue: even with the Chevron deference, the courts always had the option to decide that the regulatory agency position was not reasonable) and you still won't say who you think should be regulating the regulators, and how that would work differently from the experts in the agencies in question.
In other words, you are unwilling to explain or defend your position or elaborate on your opinion. You just keep re-asserting it, as if repetition is some form of discussion. But I knew that would be the case. It has been your MO since you started commenting here.
Thank you for the entertainment, TWFA @52.
Your mention of "draft animal farts" and the production of CO gas . . . is a [typo?] of Justice Gorsuch-ian expertise. Asphyxiatingly funny ~ if you really meant CO2 gas.
I shall abstain from a pun about horses, mules, asses, and "asphyxiation". Also, TWFA, don't risk confusing H2S and H2O.
[PS] Dial it back. This is not constructive commentary.
TWFA,
It is important to not be governed by interests that conflict with learning to be a more helpful and less harmful member of humanity. Note that current time period societies, like political party tribes in a nation, are sub-sets of global humanity including all future generations.
I recommend seriously considering the points I shared from Kahneman’s book “Noise”. Also, consider reading the entire book as well as his earlier book “Thinking Fast and Slow”. Otherwise a person is likely to produce nonsense noise on matters because of biases keeping them from thoughtful slow consideration and learning.
I also recommend reading “How Democracies Die” by Levitski and Ziblatt. They explain how institutions are important to democracy. But institutions need to be protected from corruption by harmful interests.
Sustaining and improving the responsible and reasonable freedoms of all members of a society (what democracy aspires to achieve) requires responsible reasonable civil society members to effectively govern what happens to protect the institutions of the democracy from being captured and controlled, or being significantly influenced, by interests that conflict with learning to be less harmful and more helpful.
The actions of the US SC regarding Chevron deference are just one of many examples of how the SC institution has been captured and controlled by interests that conflict with maintaining and improving democracy in the US. And that capture and control of the SC is the result of the US Republican Party failing to keep itself from being captured and controlled by harmful interests that conflict with learning to be less harmful and more helpful to Others. And the US Democratic Party has also failed by allowing its leadership actions to be significant influenced by harmful interests in conflict with learning to be less harmful and more helpful.
To be more pointed regarding climate change impacts, the harmful fossil fuel interests try to influence and control whatever political players are required to achieve their harmful interests (Tea Party, Joe Manchin...). They can be expected to take maximum advantage of the new SC decision regarding Chevron deference.
So the reality is that the ‘SC institutional leg of the US democracy stool’ has been harmful captured by interests in conflict with maintaining and improving US ‘Democracy for all’. The SC was significantly compromised before. But now the SC is significantly controlled by bias against learning to be less harmful and more helpful. What institution(s) can counter and limit the harms done by decisions made by such a biased SC?
BTW, regarding the following quote from TWFA @42,
for example a Clean Air Act of 1850 to control draft animal farts is applied to CO 60 years later, whether the regulators should have the power to decide on their own
Methane (CH4) from livestock is the concern (not CO). Also, the methane is in the burps, not farts, from animals like cows. Work animals commonly referred to as ‘draft animals’, like horses, do not digest their food in the same way as livestock. So, draft animals are not likely to be a methane generation problem. And a ‘general rule limiting sources of methane from human caused activity’ would not require legislators to spend time updating a detailed list of problematic methane sources that get identified by ‘experts in the matter’ (note that people wanting to benefit from harmful methane releases are unlikely to inform legislators of the harms their interests produce). And a ‘non-corrupted SC’ would be an effective check and balance institution to ensure that how the regulators identified and restricted harmful methane releases were reasonable.
Correction of my comment @56,
It should have been: BTW, regarding the following quote from TWFA @52,...
I am going to make two points
US Constitution
Under the US Constitution, the legislative branch (article 1) makes the law, and the executive branch (article 2) enforces the law. It is not the place of executive branch agencies to make law. The chevron decision allowed government agencies to make law. The overruling of chevron only places the making of law back to its proper place - Congress
Experts
Several commentators have made comments about the experts many of which show misconceptions about who are actual experts.
You will almost always find much greater levels of expertise in industry than you find in government positions. I happen to be a CPA with an expertise in federal and state taxation. fwiw, the average CPA has vastly greater accounting and tax expertise the most any IRS agent. The point being is dont over rate experts who dont have any real world experience.
David-acct @58,
The problem with industry 'experts' can be that they are expert at hiding evidence, failing to investigate potential harms, and making up misleading statements because they have interests that conflict with helping others learn to be less harmful and more helpful.
And the over-ruling of Chevron deference can be understood to be an unreasonable judgment for the reasons presented in many comments.
What you have said appears to ignore or deny the reality of the ways that pursuits of reward and status are known, more so now than when the Constitution was written, to create 'interests' that conflict with learning to improve a social system and correct its potentially unsustainable and harmful developments.
You also appear to believe that if it isn't explicitly 'conclusively provable to be against the current laws' it is totally OK. If that were true there would be no need for any new laws. That ignores or denies the reality of the many ways that competition for reward and status results in people doing things that are understandably unacceptable, but claiming it isn't able to be proven to be against the currently written laws (as they interpret them) so they can do as they please.
You should read Daniel Kahneman's book "Noise" that I refer to in my comment @48. The book includes extensive points about the potential problems of attempting to get improved, less biased and less noisy, judgments through rigid wording rather than clear guidelines open to improvement via input from helpful experts, skeptically questioning the input to be sure there is no conflicting interest influence.
David-acct @ 58:
Well, I think you are over-generalizing, and I will make two points in response to your two points.
On the constitutional aspects:
The Chevron deference is not about agencies making new law - it is about interpreting existing law when the law is vague. Read the OP: the decision process (in court) had two steps (emphasis added):
The agencies do not get to ignore Congress. The discussion in the comments points out the risks and problems associated with waiting for Congress to act on every tiny detail that is unclear in existing legislation.
On the subject of experts:
Your "almost always" claim that government experts are worse than industry experts is condescending twaddle. This may come as a surprise, but the "A" in "EPA" is not "Accounting". Your narrow experience in one specialty does not necessarily extend to all disciplines.
In areas of science, such as climate, water quality, atmospheric pollution, etc., government research groups are often at the cutting edge of the discipline. And the research component within government is usually strongly tied to the monitoring and regulatory components. In the case of such areas of expertise, the "real world experience" involves going out into the field and actually observing the natural environment and how humans interact with it. Government monitoring and research agencies do this in spades.
I have worked in industry, academia, and government. In industry, the "expertise" is often brought into play through the use of consultants. As OPOF points out, "The problem with industry 'experts' can be that they are expert at hiding evidence, failing to investigate potential harms, and making up misleading statements because they have interests that conflict..."
Once things get to court, it is often a "battle of the experts". The government side will rely on its experts. The industry side will rely on its experts. The Chevron deference does not allow the agency to make unreasonable interpretations - it just sets a priority of trust.
If courts end up shifting to "we'll wait for Congress to act" every time something is unclear, then agencies will be unable to proactively deal with anything. We'll shift to a purely reactive management style - closing the door after the horses have escaped.
As far as David-acct's claim that industry accountants are better than government accountants, I can imagine that this is quite possibly true. I think the accountants at Enron and Arthur Andersen were probably a lot brighter that the IRA accountants. At least, they were a lot more creative. Glad that worked out so well for everyone.
Bob Loblaw @61 provided great examples of ‘harmful industry accountant experts’ in response to David-acct.
I would add that Exxon leadership and its industry leadership fans, like the Kochs and Chevron, provided an example of harmfully compromised judgment in their response to the understanding of climate science that Exxon’s in-house experts had developed.
The hard-line groups vehemently opposed to learning to be less harmful (angrily opposed to learning and progress) have captured and control right-wing groups in the US and so many other places. They are loudly and proudly incorrect about many ‘understandable matters of judgment’ these days. And they resist learning that their beliefs are fuelled by harmful misunderstandings.
Even if the current ‘harmfully biased against learning to be less harmful’ SC had not had the opportunity to ‘unreasonably cancel/nullify the reasonable understanding of Chevron deference’ it appears that their judgments on similar matters would be aligned with ignoring the helpful reasonableness of Chevron deference.
Powerful people with interests that conflict with learning to be less harmful and more helpful have always been a problem. In order for humanity to collectively improve life for all humans now and into the future civil society needs to succeed in their helpful efforts to govern/limit the freedoms of harmful trouble-makers, especially limiting their freedom to benefit from the promotion of misunderstanding.
The Welsh government (the Senedd) may make a big progressive step by 2026. They promise to enact a law that penalizes elected representatives who knowingly promote misunderstandings. The following BBC article is one of many reports of this ‘global first – legally penalizing politicians for being misleading’:
Ban on Welsh politicians lying promised by 2026
It be great if SC justices could be reasonably banned from the SC if they are found to have passed judgments that conflict with learning to be less harmful and more helpful to others, including being misleading to try to mask the harmfulness of an unreasonable judgment by claiming that the unreasonableness is justified by ‘their’ selected interpretation of the wording of a law or the Constitution?
But the majority in the current SC would not even accept 'ethical limits to their freedoms'. So the limits on their freedom to be harmfully unreasonable would be almost impossible under the current Constitution. That is a clear massive-error in the Constitution that is almost impossible to correct. And there are likely many more 'almost impossible to correct' massive-errors and omissions in the Constitution.
As the authors of the book "How Democracies Die" explain, democracy often does not die in a rapid event. It often dies slowly from repeated successful attacks on its institutions. Those attacks compromise the ability of institutions to keep people who have interests that conflict with learning to be less harmful and more helpful from influencing leadership judgments.
Another thought regarding the Chevron deference judgment.
Prior to this judgment by the SC, if any legislature-of-the-moment disliked the court's 'Chevron deference acceptance of actions of regulators as reasonable' then the legislature-of-the-moment could still try to update the legislation.
But the opportunity to get the SC-of-the-moment to unreasonably declare that the reasonable Chevron deference approach was 'null and void' is another significant harm done to the ability of governing institutions to reasonably limit harm done.
The SC, and all other institutions, need to be More Progressive = more interested in learning to limit harm done, help others, and make amends for harms done.
My comments about the harmful learning/change resistant hard-liners (religious, racist, sexist, greedy rich, and more types) taking over the US right-wing, including the SC control evident in the Chevron deference judgement, is well summarized in this new NPR article:
RNC represents culmination of a decades-old movement in the Republican Party
The article also aligns with the understanding that ruining democracy and ending the related freedoms, particularly the freedom from unjust persecution, for caring thoughtful responsible people is often a slow process (I mentioned this was presented in the book “How Democracies Die” in my comment @62 and earlier comments). It also supports the understanding that the institution of the Republican Party failed to protect US democracy by allowing the hard-line social conservatives to taking over the party. And it presents the case that the take-over of the Republican Party was a significant source of the divisiveness in current day USA.
The following are a few quotes from the article:
They feared changing values around sex, civil rights, women’s rights and gay rights.
They believed the establishment was too moderate, too accommodating.
They dismissed the machinery of government and the media as controlled by a liberal elite.
They were known as “the New Right,” and 50 years ago they won a victory in the Republican Party.
It is the heirs of that political movement who have gathered at this year’s Republican National Convention in Milwaukee. As the party pushes to dramatically reshape government and roll back changing cultural mores, nominating a candidate who has disregarded fundamental elements of American democracy, it may feel like a sudden and extreme pivot in American politics. But this surge to the far-right stems from seeds planted a half-century ago.
...
1974: Kanawha County, West Virginia
... They were appalled by mentions of sex, inclusions of profanity, exploration of non-Christian creation myths, and readings from Malcolm X.
The protests grew violent. Bombs exploded at elementary schools (Horan later went to prison for his involvement). Snipers fired at school buses. The Ku Klux Klan joined a rally at the state capitol in Charleston.
Meanwhile, outside activists arrived to aid the protesters, as well. They came from a variety of mostly new organizations: the Conservative Caucus, Citizens for Decency Through Law, the Populist Forum, and one called the Heritage Foundation.
The Heritage Foundation is undeniably the harmful buddying up of the fossil fuel interests with the social conservative interests (almost all in conflict with learning to b e less harmful and more helpful to others)
It is important to understand that the powerful fossil fuel interests had been significantly influencing US leadership judgment before the social conservatives pursued the capture (hostile take-over stuff) of the Republican Party in the 1970s. The harmful wealthy fossil fuellers willingly buddy up with harmful social conservatives because:
The union of unreasonable misunderstanding fuelled people have captured control of the SC for the foreseeable future (no mechanism to change the SC other than a SC justice ‘retiring’ when Democrats control the Senate and Presidency, or a SC justice being successfully impeached and convicted by the House and Senate).
Some final quotes from the NPR article:
1974: Boston, Massachusetts
A bottle shattered. Eggs splattered and rocks hammered against the window of a school bus filled with children. Parents had violently risen up against a plan to desegregate schools, which involved sending children sometimes across town by bus.
As riots engulfed the city, once again outside activists from a variety of new groups arrived to help the protesters.
The next year, 1975, featured a remarkable convergence. Hundreds of anti-busing protesters from Boston and anti-textbook protesters from West Virginia joined together in a march on Washington, D.C.
Two separate, regional uprisings against social change became one.
...
The outside groups who aided the protests, along with a host of others like them, would earn the moniker “the New Right.”
...
1976: North Carolina
It was embarrassing how badly Ronald Reagan was losing.
... Reagan pledged to transform the GOP, shift it rightward, into a “party of bold colors, no pale pastels.”
In other words, Reagan was the candidate of the New Right.
... He lost the first five primaries to Ford, in increasingly emphatic fashion. His top aides prepared to withdraw.
... Sen. Jesse Helms and his political strategist Tom Ellis, took charge of Reagan’s campaign in their state. They reshaped his message, emphasizing a nationalist appeal featuring the Panama Canal.
Reagan adopted a new slogan: “Make America Number One Again.”
...
This week, amid bipartisan calls to ratchet down political rhetoric after the assassination attempt against Trump, Republican delegates in Milwaukee approved the party’s latest platform. While it removes explicit opposition to abortion, the social backlash and apocalyptic rhetoric that decades ago typified the New Right infuses the document, from its call to “deport millions of illegal Migrants who Joe Biden has deliberately encouraged to invade our Country” to its focus on banning textbooks “pushing critical race theory.”
The New Right did not fully succeed 50 years ago when it sought to “organize discontent,” with “its eye on the presidency,” and the goal of taking “control of the culture.” But its values and heirs to its movement drive today’s Republican Party.
And the New Right Republican Party also supports environmental and fossil fuel interests that conflict with learning to be less harmful and more helpful.
I recommend reading the full NPR article and the many other presentations of the long slow deliberate attack on democracy and its 'freedoms for all reasonable responsible people' by the collective of unreasonable hard-liners who win by promoting harmful misunderstanding to excuse unjust beliefs and related unjust judgments. They harmfully mislead because they can get away with it.
Bob At 61 - You misinterpreted my point - The enron scandal was fraud, Its totally non relevant to my point which was the employees in industry who perform actual work in the field almost always have more expertise than the government experts. My experience with IRS agents bears that out. Very few IRS agents have any true expertise in tax law.
Secondly, reliance on experts was never the real issue in chevron. The issue in Chevron is who gets to decide what a statute is supposed to mean when the meaning of the words is unclear. The scientific expertise of the expert was never the real issue.
Bob at 60 -
there is a gross misunderstanding of Chevron deference and experts/expertise. Chevron deference has always been about the political preference, it was never about actual scientific expertise.
I realize the author of the OP is an administrative law expert, but his characterization of the chevron doctrine is incorrect and/or misleading.
His quote:
· Congress directs.
· In Step 2, however, if Congress is silent or unclear, then the court should defer to the agency’s interpretation if it is reasonable because agency staff is presumed to be experts on the issue."
The Actual language from Stevens Opinion in Chevron. "Such legislative regulations are given controlling weight unless they are arbitrary, capricious, or manifestly contrary to the statute."
Stevens never actually used the term "experts" or "expertise" in the body of the Chevron opinion, though he made vague reference in the footnotes.
The Following are the two footnotes of the opinion
"In these cases, the Administrator's interpretation represents a reasonable accommodation of manifestly competing interests and is entitled to deference: the regulatory scheme is technical and complex,39 the agency considered the matter in a detailed and reasoned fashion,40 and the decision involves reconciling conflicting policies.41 Congress intended to accommodate both interests, but did not do so itself on the level of specificity presented by these cases. Perhaps that body consciously desired the Administrator to strike the balance at this level, thinking that those with great expertise and charged with responsibility for administering the provision would be in a better position to do so; perhaps it simply did not consider the question at this level; and perhaps Congress was unable to forge a coalition on either side of the question, and those on each side decided to take their chances with the scheme devised by the agency. For judicial purposes, it matters not which of these things occurred."
65
"Judges are not experts in the field, and are not part of either political branch of the Government. Courts must, in some cases, reconcile competing political interests, but not on the basis of the judges' personal policy preferences. In contrast, an agency to which Congress has delegated policy-making responsibilities may, within the limits of that delegation, properly rely upon the incumbent administration's views of wise policy to inform its judgments. While agencies are not directly accountable to the people, the Chief Executive is, and it is entirely appropriate for this political branch of the Government to make such policy choices—resolving the competing interests which Congress itself either inadvertently did not resolve, or intentionally left to be resolved by the agency charged with the administration of the statute in light of everyday realities."
As noted by the above citations, Chevron deference was always a political deference, not a deference to experts.
The except below is an example of my point regarding industry experts having significantly more real world expertise than so called government experts who often have limited practical experience.
"The final rule pushed by the biden administration would be upheld by the courts if following the Chevron doctrine. Yet actual industry experts point out the massive increase in the risk of grid failure.
"PJM manages the transmission of wholesale electricity across 13 states and the District of Columbia – including major data center hotspots such as Virginia and Ohio.
Meanwhile, a neighboring RTO, the Mid-Continent Independent System Operator (MISO) painted an even gloomier picture in its recent “Reliability Imperative Report.” MISO manages electric transmission across 15 states throughout most of the Midwest, Mississippi Valley, and Great Plains regions as well as the Province of Manitoba in Canada.
In their report, MISO forecasts a demand increase of 60 GW, or 32%, by 2042. At the same time, MISO expects much of their current baseload capacity to retire. And despite new renewable generation planned for construction, MISO expects to see a net capacity decline of 32 GW (@18%).
“Because new wind and solar resources have significantly lower accreditation values than the conventional resources that utilities and states plan to retire in the same 20-year period, the region’s level of accredited capacity is forecast to decline by 32 GW by 2042” MISO stated.
PJM expects 58 GW of current capacity to retire by 2032, which is approximately 30% of the total current capacity of 196 GW). This amount of capacity loss is despite peak forecasted demand increasing by 43 GW above current capacity."
www.realclearenergy.org/articles/2024/06/26/joe_bidens_energy_policies_are_based_on_fantasies_and_fairy_tales_1040660.html
As noted above, Even though a shif to greater relience on renewable energy is good, policy, industry experts with real world experience have vastly greater expertise than most of the government experts.
David-acct :
Your examples of industry expertise have been rather narrow in scope. I am fairly certain you could also adduce some contrary examples ~ particularly in the areas of the EPA and also worker safety areas (and public safety).
Horses for courses . . . but as a default position, the Chevron Deference is a commonsense starting position. Unfortunately, common sense gets short shrift when doctrinaire political animals insist on being guided by their ideology rather than by their intellect. (And "reasonable" goes out the window.
David-acct @ 65:
You are completely missing my point. Of course, my point was made implicitly, not explicitly - and in sarcasm (part of my Brritish heritage when it comes to humour, in all probability).
My point is that your point of "You will almost always find much greater levels of expertise in industry than you find in government positions." paints a very incomplete picture. Good behaviour is not guaranteed by "greater levels of expertise". It also requires ethics.
I am quite sure that Bernie Madoff and Charles Ponzi had much greater expertise in the investment business than your average retail investment advisor. That does not mean that they would have been good people to get advice from when trying to develop, establish, or apply regulations for the investment industry. Because they lacked ethics.
Eclectic @ 68 has pointed out that your examples of industry expertise are narrow in scope. I also pointed that out in comment 60, but you have ignored that. You continue to make broad, sweeping claims of "almost always". Please try to broaden your view.
You seem fixated on "IRS agents". What is your definition of an "IRS agent"? What does their job description entail, and what training/academic background are they required to have? I could probably just as easily say "your average lawyer rarely has any true expertise in tax law". Are "IRS agents" the ones that advise government on developing tax law? Are they the ones that will testify in court to support an agency interpretation of a regulation?
If an "IRS agent" is a person that deals with public questions, in order to try to help them through difficult, hard-to-interpret tax regulations, then I can easily imagine that they are only trained to deal with the simpler situations. And that specialized tax lawyers know more. To generalize that to "employees in industry ... almost always have greater expertise than the government experts" is a huge stretch. You're making a comparison between the top end of "industry experts" and the bottom end of "IRS agents" and making a specious comparison.
Now, to address David-acct's comments (66 and 67) about the Chevron deference and expertise.
You start in comment 66 with "There is a gross misunderstanding..." and basically call it all politics. I dont' see the quotes you provide as supporting that argument. In the OP, you quoted the section I have also previously quoted, which says "...the agency’s interpretation if it is reasonable...", and claim that this is different from the actual wording of the decisions which states (your quote) "... unless they are arbitrary, capricious, or manifestly contrary to the statute." In my mind, "arbitrary, capricious, or manifestly contrary to the statute" would be, well, let me search for a word, unreasonable.
The OP gives this link to Cornell Law School's description of the Chevron deference. This is their description of the issue (emphasis added in bold):
You (David-acct) call the Chevron deference "political", and unrelated to expertise. Yet the quotes you provide in comment 60 include the following (emphasis added):
I see "policy decisions". Although policies are established by the acts legislated by politicians, I do not see every policy decision as a political act. Your mileage may vary.
I will close with a comment on the last bit in the opinion footnotes you quoted: "the administration of the statute in light of everyday realities."
The ultimate outcome of the latest ruling will require that we wait to see what effect it has on future court decisions.
In comment 7, Eclectic mention a Youtube video from the LegalEagle channel that discusses this topic. This is the direct link to that video. I finally got around to viewing it a few days ago.
Although the ads are annoying, the video does provide some interesting details on a number of the historical precedents that are related to the most recent Supreme Court decision. The producers of that video obviously have a viewpoint about the SCOTUS decision that TWFA and David-acct probably will not agree with, but it is definitely worth watching if you don't know what the fuss is all about.
Two of the predictions they make are interesting:
At the end of the video, one of the points they make is that it is worthwhile in such (legal) cases to look at the end of the brief, to determine who it is that decided to spend money on challenging a law in court. For the two cases that led to this SCOTUS decision, the plaintiffs are well-funded think tanks that include the Koch brothers as sources of funding.
This case is not "the little guy looking for justice". This is rich industrialists with a primary goal of getting richer. Why worry about trying to achieve "regulatory capture" when you can accomplish "legal system capture"?
It's amazing, the regulation mastermind defenders are like a perpetual motion machine... I give the wheel a nudge and it never stops.
Anyway, all this hand wringing over the end of Chevron meaning the end of the world will prove as silly as Dobbs leading to the end of abortions, those who worship at the alter of abortion can take heart that abortions are up substantially since then, [Here] and no doubt the relentless march for more regulation will continue with the only difference being that people of less means, like those fishermen, will have a better chance of fighting unreasonableness than before, where as has been correctly pointed out, it was only the well-healed who could take up a cause.
Lots of sarcasm but not that much substance. The real enemies of artisanal fisheries are industrial fishing corporations exploiting factory ships, not regulations desperately attempting to protect a resource. Back 150 years ago, cod mountains seemed as inexhaustible as the plains bisons.
Ah, yes. The classic TWFA posting style. Lots of use of emotional triggers such as "regulation mastermind defenders", "perpetual motion machine", "end of the world", "worship at the alter [sic]".
...but completely devoid of substance.
I'm glad that TWFA is concerned about the health of others, though - since he wants the "well-healed" to lead the cause. I was more concerned that the US legal system is controlled by people with money (well-heeled). You know - one dollar, one vote.
In the previously-linked LegalEagles video, they point out that the two recent SCOTUS decisions had been lost at the trial level, and lost at the DC Circuits level, and by the time they reached SCOTUS, the only legal question at hand was overturning the Chevron deference or clarifying the issue of Congressional silence on matters. The issue of fish was always a red herring. An excuse.
TWFA seems to think that rich industrialists are making these challenges for the benefit of the poor, downtrodden everyday American. Yes, I'm sure the tobacco companies fought restrictions on tobacco use because they wanted all Americans to have the chance to be "well-healed".
You guys [Snip] should be happy, if it were not for folks like me stopping by it would get pretty boring just watching you goose-stepping together day after day.
[BL] Alas, your blatant trolling has forced me to recuse myself from any further discussions with you on this topic, and switch to moderator roll. Any subsequent posts from you on this topic will be deleted entirely.
Before you comment on any thread in the future, please read the Comments Policy.
TWFA,
A person in the habit of liking to make poor judgments, see my earlier comments referring to Daniel Kahneman's expert evaluations, would likely perceive 'agreement among others sharing common understanding of Better judgment' as Goose-stepping.
[BL] The comment from TWFA that you are responding to has been largely snipped away. Expect any further comments from TWFA on this thread to be deleted entirely.